N3524

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 654 OF 2008

ZACHARY GELU
First Applicant

ISAAC LUPARI
Second Applicant

TAU LIU
Third Applicant

V

SIR MICHAEL SOMARE MP
First Respondent

MAURICE SHEEHAN, JUSTICE CATHY DAVANI & DON MANOA
Second Respondents

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Cannings J
2008: 13, 17 November

RULING

JUDICIAL REVIEW – application for leave to seek judicial review – whether undue and unjustifiable delay in making application – whether alleged breaches of the Constitution can form grounds on which judicial review is sought – whether judicial review procedure can be used to challenge constitutional validity of an Act of the Parliament – whether applicant has an arguable case.

Three persons summoned to appear before a commission of inquiry established by the Prime Minister under the Commissions of Inquiry Act sought leave to apply for judicial review of the decision of the Prime Minister to appoint the Inquiry. Nine grounds of review were proposed, seven of which were based on alleged breaches of the Constitution. There were three contentious issues at the leave hearing:

•	whether the applicants were guilty of undue and unjustifiable delay;
•	whether the grounds of review that raised constitutional questions were properly before the National Court; and
•	whether there was an arguable case.

Held:

(1)	The applicants are not guilty of undue and unjustifiable delay as they commenced the proceedings within a reasonable time after being summoned to appear before the Inquiry.

(2)	The ground of review (No 3) that seeks a declaration that the Commissions of Inquiry Act is unconstitutional, is not properly before the National Court and was struck out, as: it alleges no error of law on the part of the person whose decision is subject to review (the Prime Minister); and a direct challenge to the constitutionality of any law can only be made by invoking the original jurisdiction of the Supreme Court under Sections 18(1) or 19 of the Constitution.

(3)	Other grounds of review that raise constitutional issues (Nos 4 to 9) are properly before the National Court, there being no rule of law or practice and procedure that the alleged breach of a Constitutional Law by a person whose decisions are subject to judicial review cannot be a ground of judicial review.

(4)	All grounds (other than No 3) disclose an arguable case.

(5)	Accordingly, leave was granted to apply for judicial review on grounds 1, 2, 4, 5, 6, 7, 8 & 9.

Cases cited

The following cases are cited in the judgment:
Lowa v Akipe [1991] PNGLR 265
Nanan v Maru and Commissioner of Police (1997) N1507
NTN Pty Ltd v PTC and Media Niugini Pty Ltd [1987] PNGLR 70
Pinggah v Elias (2005) N2850
Sausau v Kumgal and PNG Harbours Board (2006) N3253
SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178
SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329
Telikom PNG Ltd v Newsat Ltd (2007) N3451

Abbreviations
The following abbreviations appear in the judgment:
CJ – Chief Justice
J – Justice
Ltd – Limited
N – National Court judgment
No – number
OS – Originating Summons
PNGLR – Papua New Guinea Law Reports 
PTC – Post & Telecommunications Corporation
Pty – Proprietary
SC – Supreme Court judgment
SCR – Supreme Court Reference
v – versus

APPLICATION

This was an application for leave to seek judicial review under Order 16, Rule 3 of the National Court Rules.

Counsel
N Tame, for the applicants
I Molloy & F Barton, for the respondents

17 November, 2008 

1. CANNINGS J: Three persons who have been summoned to appear before a commission of inquiry are seeking leave to apply for judicial review of the decision of the Prime Minister to appoint the Inquiry. This is a ruling on their application for leave.

2. The applicants are Zachary Gelu, Isaac Lupari and Tau Liu. The Commission of Inquiry concerns "the Management Generally of Public Monies by the Department of Finance". It was established under the Commissions of Inquiry Act by the Prime Minister, Sir Michael Somare, in May 2008. The Inquiry is constituted by Chief Commissioner Maurice Sheehan and Commissioners Justice Cathy Davani and Don Manoa.

3. The Inquiry commenced public hearings in September 2008. The applicants were summoned to appear in late September-early October 2008. They filed their application for leave to apply for judicial review on 22 October 2008. They want the National Court to quash the decision of the Prime Minister to appoint the Inquiry and to order that the Inquiry be prohibited from conducting any further proceedings. They seek leave to argue nine grounds of judicial review.

4. The respondents oppose the granting of leave for three reasons:

•	the applicants are guilty of undue and unjustified delay in commencing these proceedings;
•	most of the grounds of review raise constitutional questions that are outside the jurisdiction of the National Court; and
•	the applicants do not have an arguable case.

5. The respondents concede that other pre-conditions to granting leave (applicants have sufficient interest, decision sought to be reviewed is by a public authority, exhaustion of administrative remedies) are satisfied.

HAS THERE BEEN UNDUE AND UNJUSTIFIED DELAY?

6. Mr Molloy points out that the Prime Minister’s decision to appoint the Inquiry was made on 12 May 2008. The applicants did not file the application for leave until more than five months later, on 22 October 2008. Under Order 16, Rule 4 of the National Court Rules, four months are allowed after the making of a decision to file an application for leave. After that, a heavy onus is on an applicant to explain the delay. Leave can be refused if granting the relief sought would, amongst other things, "be detrimental to good administration".

7. Mr Molly submitted that the applicants were well outside the four-month period and have not given a sufficient explanation. The appointment of the Inquiry was given wide publicity. They would have known that they would be affected by it. They should have acted quickly to agitate their grievances. Instead they sat on their rights, doing nothing to challenge the Inquiry’s appointment. In the meantime, considerable time, effort and expense had been incurred by the Inquiry going about its work. It commenced its public sittings on 18 September 2008 but still the applicants did nothing until more than a month later.

8. Mr Molloy has correctly set out the principles governing the issue of delay, as per the decision of Wilson J in NTN Pty Ltd v PTC and Media Niugini Pty Ltd [1987] PNGLR 70. I agree that there has been some delay in this case. 

9. As to whether the applicants have given a reasonable explanation for it, it is relevant that the Inquiry did not commence its public sittings until September. They were not summoned to appear until late September or early October 2008. I agree with Mr Molloy that they would surely have known that they would be affected by the Inquiry as they had all signed various out of court settlements during the period (2000 to 2006) covered by the Inquiry. None of them, least of all Mr Gelu who was Solicitor-General in 2002-2003, could have been surprised when they were summoned to appear before the Inquiry.

10. However, I think that in all the circumstances they were entitled to wait until they were summoned, before it became incumbent on them to act expeditiously and file their application in the National Court. The receipt of a summons was the point at which their interests were formally and directly affected by the proceedings of the Inquiry. They filed their application for leave within a few weeks after that. They have to my satisfaction explained the delay.

11. I find that there has been no undue and unjustified delay in applying for leave. 

ARE THE GROUNDS RAISING CONSTITUTIONAL QUESTIONS PROPERLY BEFORE THE NATIONAL COURT?

12. Mr Molloy points out that seven of the nine grounds of judicial review raise constitutional questions that fall within the original jurisdiction of the Supreme Court. He relies on Section 18(1) of the Constitution, which states:

Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

13. Mr Molloy refers to the Supreme Court’s decision in Lowa v Akipe [1991] PNGLR 265 to argue that applicants who wish to frame a cause of action on breaches of the Constitution must invoke the original jurisdiction of the Supreme Court under Section 18(1). An action cannot be founded in the National Court under Section 18(2) of the Constitution, which states:

Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

14. Mr Molloy submits that grounds of review 3 to 9 should be struck out summarily, irrespective of whether there is an arguable case to support them, as they are all raising questions relating to the interpretation or application of the Constitution that can only be prosecuted in the Supreme Court.

15. I have no difficulty accepting this submission regarding ground No 3. It alleges that the Commissions of Inquiry Act is unconstitutional as it regulates or restricts the rights of citizens (eg the freedom from arbitrary search and entry and the right to privacy) but has not been made in compliance with the manner and form requirements of Section 38 of the Constitution. 

16. This ground is not properly before the National Court for two reasons. First it alleges no error of law on the part of the person whose decision is subject to review (the Prime Minister). It is alleging an error of law by the Parliament, so it is not a ground that belongs in an application for judicial review under Order 16 of the National Court Rules. Secondly, the Supreme Court said in Lowa v Akipe that a direct challenge to the constitutionality of any law can only be made by invoking the original jurisdiction of the Supreme Court under Sections 18(1) or 19 of the Constitution. You cannot commence an action in the National Court and ask it to declare that a law is unconstitutional. Ground No 3 must therefore be struck out.

17. As for ground Nos 4 to 9, Mr Molloy has correctly labelled them as raising constitutional issues. No 4, for example, alleges that the Prime Minister erred in law by conferring the judicial authority of the People on the Commission of Inquiry, which is not a part of the National Judicial System, by requiring the Inquiry to inquire into the propriety and legality of out-of-court settlements, consent orders and default judgments. This is said to be contrary to the provisions of Division VI.5 (the administration of justice) of the Constitution.

18. However, I am not convinced that by alleging breaches of the Constitution as grounds of review, the applicants are attempting to bring issues before the National Court that do not belong there. In Lowa v Akipe it was acknowledged that questions of constitutional interpretation and application can arise during the course of "ordinary litigation" in the National Court. If such a question "arises" (and cases such as SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329 indicate when they "arise"), then – but only then – is the National Court obliged to refer it to the Supreme Court (Telikom PNG Ltd v Newsat Ltd (2007) N3451).

19. The present case – an application for leave to seek judicial review – is ‘ordinary litigation’. If leave is granted, questions of constitutional interpretation and application might arise during the hearing of the substantive application for judicial review that will necessitate a reference to the Supreme Court. They might not arise. It is too early to say. It is too early to strike out these grounds of review.

20. The Supreme Court did not say in Lowa v Akipe that an applicant for judicial review cannot allege breach of a Constitutional Law as a ground of judicial review. Mr Molloy did not refer to any other case as authority for that proposition. I do not think there is any other case that says that, at least no other Supreme Court case. I think I would be breaking new ground if I struck out these grounds of review summarily. That wouldn’t be a bad thing if it were the correct thing to do. But I am not sure that it would be correct, or just. I do not think there is any rule of law or practice and procedure that the alleged breach of a Constitutional Law by a person whose decisions are subject to judicial review cannot be a ground of judicial review.

21. In saying that, I note that Injia CJ has expressed the view, in the National Court, that grounds of review that allege breaches of the Constitution such as Section 37 (protection of the law), Section 41 (proscribed acts) or Section 48 (freedom of employment) "are not the sort of grounds upon which the common law discretionary procedure of judicial review would lie" (Sausau v Kumgal and PNG Harbours Board (2006) N3253). In Pinggah v Elias (2005) N2850, his Honour dismissed as misconceived a ground of judicial review that argued that a decision to dismiss a public servant was harsh and oppressive and contrary to Section 41 of the Constitution: "The appropriate procedure in judicial review to be invoked when challenging the unreasonableness of a decision is under the Wednesbury principle", his Honour ruled. Earlier, in Nanan v Maru and Commissioner of Police (1997) N1507 his Honour remarked that "it is not appropriate for the court in a judicial review application to indulge in constitutional questions".

22. Those are decisions made in the National Court and I am not, with respect, bound to follow them.

23. It must also be borne in mind that Section 18(1) of the Constitution, on which Mr Molloy relies, begins with the words "subject to this Constitution". It cannot be read in isolation. Some provisions of the Constitution expressly allow the National Court to determine questions of constitutional interpretation and application. In particular, Sections 22 (enforcement of the Constitution), 23 (sanctions) and 57 (enforcement of guaranteed rights and freedoms). So, why should the National Court close the door on someone who wants to argue constitutional questions as part of an application for judicial review? Wouldn’t we be allowing form to get in the way of substance? Allowing the niceties of procedure to triumph over dispensation of justice?

24. I reiterate that this issue (is it permissible to plead a breach of a Constitutional Law as a ground of judicial review?) has not been clearly and authoritatively settled by the Supreme Court. Until it is, any uncertainty about the propriety of grounds of review should, in the interests of justice, be resolved by leaving them in, rather than striking them out. The proposed grounds still have to pass through the filtering process provided by the requirement that they be arguable.

25. Therefore I decline, at this stage, to strike out grounds 4 to 9.

DO THE GROUNDS OF REVIEW DISCLOSE AN ARGUABLE CASE?

26. I will examine each of the grounds of review from this angle.

Ground 1: The Prime Minister breached the Commissions of Inquiry Act by executing more than one instrument of appointment, failing to fix a quorum and failing to sufficiently specify the subject matter of the Inquiry.

This is an arguable point, given the wording of Section 2 of the Act.

Ground 2: The Prime Minister erred in law by purporting to authorise the Inquiry to inquire into and determine the legality of deeds of settlement executed by the applicants, when the Inquiry, as an agent of the State, is estopped from doing that by the terms of the deeds of settlement.

The affidavits sworn by Mr Lupari and Mr Liu depose to the terms of deeds of settlement that they executed several years ago. The State was a party to those deeds. It is arguable that the Prime Minister was constrained by those deeds when authorising an inquiry into their legal validity or propriety. It is a novel point, which I consider arguable.

Ground 3: Struck out, for the reasons set out above.

Ground 4: The Prime Minister has conferred the judicial authority of the People on the Commission of Inquiry, which is not a part of the National Judicial System, by requiring the Inquiry to inquire into the propriety and legality of out-of-court settlements, consent orders and default judgments.

It is arguable that by authorising and requiring the Inquiry to "establish the extent of illegal and improper claims, judgments or out-of-court settlements" (emphasis added) the Prime Minister has purported to confer judicial powers on the Inquiry in a way that offends against Division VI.5 (the administration of justice) of the Constitution and the principle of separation of powers entrenched by Section 99 (structure of government) of the Constitution.

Ground 5: The Prime Minister breached Section 157 of the Constitution (independence of the national judicial system) by appointing Justice Davani as a Commissioner. Section 157 states that no person or authority (other than the Parliament through legislation) can give directions to a member of any court in respect of the exercise of judicial powers or functions. It is alleged that Justice Davani has been directed to perform judicial functions outside the National Judicial System.

This ground would appear to rise or fall with ground No 4. I have ruled that ground 4 is arguable. It follows that ground 5 is also arguable.

Ground 6: The Prime Minister breached Section 148(3) of the Constitution (functions etc of ministers) by appointing Justice Davani as a Commissioner. Section 148 provides that no Minister has any power of direction or control over any branch of government, except where such a power is expressly conferred by a written law (SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178). It is alleged that Justice Davani has been directed to perform judicial functions outside the National Judicial System.

This ground would appear to rise or fall with ground Nos 4 and 5. I have ruled that grounds 4 and 5 are arguable. It follows that ground 6 is also arguable.

Ground 7: The Prime Minister breached Section 214 of the Constitution (establishment of the office of Auditor-General) by authorising the Inquiry to inspect and audit certain public accounts of Papua New Guinea. Section 214 provides that those matters are the functions of the Auditor-General. It is alleged that the Prime Minister’s decision to set up the Inquiry is an attempt to usurp the functions of the Auditor-General.

This ground raises the issue of whether the Auditor-General has exclusive authority over the functions conferred on him by Section 214. It is arguable that those functions exclusively reside with him and the powers conferred on the Inquiry by the Prime Minister are too broad. Ground 7 is arguable.

Ground 8: The Prime Minister breached Section 216 of the Constitution (functions of the Committee) by authorising the Inquiry to examine and report on the public accounts of Papua New Guinea and on transactions concerning the public moneys of Papua New Guinea. Section 216 provides that those matters are the functions of the Public Accounts Committee. It is alleged that the Prime Minister’s decision to set up the Inquiry is an attempt to usurp the functions of the Committee.

This ground would appear to rise or fall with ground No 7. I have ruled that ground 7 is arguable. It follows that ground 8 is also arguable.

Ground 9: The Prime Minister breached Section 148 of the Constitution (functions etc of ministers), in that:

(a)	by authorising the Inquiry to inquire into the performance of powers and functions of the Secretary for Finance, this is tantamount to an exercise of a power of direction or control over the Secretary, contrary to Section 148(3) of the Constitution;

(b)	by authorising the Inquiry to inquire into the performance of powers and functions of the Attorney-General and the Solicitor-General, this is tantamount to an exercise of a power of direction or control over those officers, contrary to Section 148(3) of the Constitution and, in the case of the Attorney-General, contrary to Section 156(2) of the Constitution (the law officers);

(c)	by authorising the Inquiry to inquire into the performance of the Departments of Finance and Justice & Attorney-General (for which the Prime Minister does not have political responsibility), this is tantamount to an exercise of a power of direction or control over those Departments, contrary to Section 148(3) of the Constitution.

27. Underpinning each of these sub-grounds is the argument that, in establishing the Inquiry, the Prime Minister was exercising a power delegated to him by the Parliament and that, in exercising that delegated power, he acted contrary to the laws setting up the Departments of Finance and Justice & Attorney-General and the laws conferring powers on the Secretary for Finance, the Attorney-General and the Solicitor-General.

28. I have struggled to appreciate the tenet of ground 9. It is rather convoluted but, having ruminated over it, I am not satisfied that it is devoid of merit. And Mr Molloy has failed to convince me that it is unarguable. I conclude that ground 9 is arguable.

CONCLUSION

29. As to the three main issues, I have concluded:

•	The applicants are not guilty of an undue and unjustifiable delay in commencing the proceedings.

•	One of the nine grounds of review (No 3) is not properly before the National Court and should be struck out.

•	The remaining eight grounds disclose an arguable case.

30. I will therefore exercise my discretion under Order 16, Rule 3 by granting leave to the applicants to apply for judicial review on eight grounds.

ORDER

(1)	Leave is granted to the applicants to apply for judicial review on all grounds of review except ground 3, ie the ground in paragraph 4.3 of the Order 16, Rule 3(2)(a) statement, filed on 22 October 2008.

(2)	Costs are in the cause.

(3)	Time abridged.

Judgment accordingly.

N Tame Lawyers: Lawyers for the applicants 
Solicitor-General: Lawyers for the 1st & 3rd respondents
Stephen L Kassman: Lawyer for the 2nd respondents